A question I get often in Georgia criminal cases is whether one spouse must testify against another at trial or a hearing. The simple answer is that there is a spousal immunity privilege for partners who are legally married in Georgia, but that this privilege does not apply in all cases. Put another way, you have a legal right not to testify for or against your spouse in a Georgia criminal proceeding, unless an exception applies.

Exceptions to the Rule

There are several important exceptions to the spousal immunity privilege in Georgia. These are found in Section 25-5-503 of the Georgia Code. You may be required to testify in the following scenarios: First, where one spouse is accused of committing a crime against a child under the age of 18. However, you can only be required to testify regarding the specific acts for which your partner is charged. Second, where you were the victim of the crime either while you were married or before marrying. Lastly, when the accused spouse is charged with damaging either joint marital property or your property.

Another informal exception to the rule is for any communications that you and your spouse had outside of the courtroom. For example, there is no privilege against the state using text messages, emails, letters, videos, or any other out of court communication between you and your spouse to prosecute the case.

Important Points to Keep in Mind

• The spousal privilege can only be used or asserted by the husband or wife who is not accused of committing the crime. The accused cannot assert the privilege himself. That means that an accused’s spouse could testify against them even if they do not want them to.
• The privilege dissolves in divorce or when one spouse dies.
• The privilege can even be asserted even when the spouse is not charged, but where testifying in another proceeding could incriminate that spouse.
• Marrying another party for the sole purpose of not having to testify against them does not invalidate or waive the privilege

The most important thing to keep in mind is to consult with an attorney before testifying against your spouse. The court nor the prosecutor has a duty to tell you about your right not to testify. And sometimes it is the testimony of one individual that can make or break a case.